Margaret M. Finnegan, as Executor of the Estate of Ellen Donlon (“Appellant”) filed a motion for rehearing in the Fourth District Court of Appeal of Florida (“Fourth DCA”) on the basis that they “overlooked Florida Probate Rule 5.025, which specifically states that Florida Rule of Civil Procedure 1.525 is inapplicable in adversary probate proceedings.” Rule 5.025(d)(2) was amended in 2011 “to insure that an award of attorneys’ fees in a probate or guardianship proceeding follows the law and procedures established for such proceedings, rather than than the law and procedures for civil proceedings.” Appellant argued that she could not be required to comply with Florida Civil Rule of Procedure 1.525 which she believed did not apply to her case, based upon the amendment to Florida Probate Rule 5.025(d)(2). In addition, Appellant argued that the court’s application of Rule 1.525 in her case conflicts with Stone v. Stone, 132 So.3d 377 (Fla. 4th DCA 2014) where the Fourth DCA did not apply Rule 1.525 to determine the timeliness of a motion for costs based upon Probate Rule 5.025(d)(2).
The Fourth DCA explained in their opinion, Finnegan v. Compton, 2015 Fla. App. LEXIS 445 (Fla. 4th DCA 2015), that the Florida Supreme Court clarified that Rule 5.025(d)(2) only applies to proceedings commenced on or after September 28, 2011 (the “effective date”) and proceedings which were pending on the effective date, but only in regard to judgments, orders, or notices which were filed on or after that date. See, In re Amendments to the Florida Probate Rules, 95 So.3d 114, 115 (Fla. 2012). Appellant obtained a final judgment on January 5, 2011 which was over eight months prior to the effective date of the amendment to Probate Rule 5.025(d)(2), which Appellant sought to rely upon. As such, at the time her judgment was entered, Civil Rule of Procedure 1.525 applied. See, Hays v. Lawrence, 1 So.3d 1176, 1177 (Fla. 5th DCA 2009). Appellant did not move for attorney’s fees until September 7, 2012 which was long after the Rule 1.525 time limits had passed. In Stone, the final judgment which was the basis for the motion for costs was impliedly entered after the amendment’s effective date, unlike the subject case. Thus, the Fourth DCA denied Appellant’s motions for rehearing and rehearing en banc based on the fact that she had received a final judgment well prior to the September 28, 2011 effective date of the amendment to Florida Probate Rule 5.025(d)(2).
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